COMPLAINT ABOUT FAULTY SERVICE
2. The version of the claimant according to the main complaint dated 06 01-2012 is to the effect that the respondents are causing loss to the claimant; that 1st instalment of Khad was sold but his name is not entered for 2nd instalment; that the present application was meant to be included in the file of the previously pending complaint bearing No.1586/289/11; that the file of the said complaint is full of the indications of the complaints against the respondents of the present application i.e Tehsildar and Naib Tehsildar; that the receipts of the legal notices are annexed with the application; that the application is supported by affidavit; that order of recovery should be issued by accepting the application.
3. The version of the claimant according to the ancillary application dated 23-01-2012 is to the effect that the claimant is resident of Ward No.1, Town Committee situated in the revenue estate of Jam Rudthal Tehsil Kot Sultan having residential and agricultural lands of his ancestors situated in different revenue estates of different tehsils; that the claimant has given several applications to the Tehsildar and higher officers for correction the record of different revenue estates; that no implementation is being made on said applications; that the claimant is being deprived of international trade by illegal methods in violation of Article 30 of the Declaration of Human Rights due to said delay; that the file of the previous complaint bearing No.1586/289/11 is full of the complaints; that the present Tehsildar is not competent to function and to receive salary and payments; that the claimant should be allocated the task of Tehsildar on contract or lease; that he has right under Article 21 Clause 1 of the Universal Declaration of Human Rights of United Nations General Assembly; that it is also adopted by principal allies for consumer protection activities; that the claimant would not give his right to anybody. It is requested that the joint company registrar office Layyah should be directed to appoint the claimant as Tehsildar and the accounts of the defendants should be frozen and the Tehsildar should be banned from exercising his powers during pendency of the application.
4. The complaint has been contested by Atta Mohammad Naib Tehsildar as defendant No.2 by filing the written statement to the effect that he has been transferred from the locality of the claimant; that his capacity has been determined by his officers; that the application is baseless; that it should be consigned.
5. The Tehsildar being defendant No.1 has not filed his written statement however the litigation clerk has relied upon the written statement of defendant No.2 Naib Tehsildar.
6. It is pertinent to note that although evidence is necessary to be recorded under S. 30 of PCP Act 2005 for disposal of the complaints by the Consumer Courts but since the procedural laws known as the Code of Civil Procedure, 1908; the Code of Criminal Procedure, 1898; (QSA) the Qanun-e- Shahadat Order, 1984, the Bankers' Books Evidence Act, 1891; special rules of evidence u/s 118 of the Negotiable Instruments Act, 1881 are not strictly applicable to the proceedings of the Consumer Courts, as such the propriety demands that the regular evidence should not be recorded in such cases where the points for determination are mostly based on the copies of the admitted documents available in the file of the complaint or admitted in the pleadings just like the present case.
7. A perusal of order dated 30-01-2012 passed by this court in the file of the complaint No.1586/289/11 titled Shehzad Tangwani V DCO Layyah, a copy of which is available on the computer of this court shows that the same was disposed off by the following operative paragraphs which are being reproduced for the facility of reference.
"9. I have observed that as far as the remaining disputes mentioned in the complaint are concerned, the same are general in nature against different departments of the government supervised by District Co-ordination Officer including some departments which are not being supervised by DCO as such it is clarified to the claimant that separate cases can be filed if so required against each department directly without impleading DCO as party and that the dispute with each department is to be explained in the said cases separately in accordance with law."
"10. Meanwhile the DCO is directed to continue further action on the complaints on the basis of the reports being submitted by attached departments so as to supervise positive improvements in the matters pointed out in the complaint."
"11. In accordance with above discussion, the complaint is hereby decided partly in favour of the claimant by asserting the orders being passed in foregoing paragraphs about direction to the DCO to continue further action on the complaints on the basis of the reports being submitted by attached departments so as to supervise positive improvements in the matters pointed out in the complaint and the direction about sanctioning of the mutation to the Tehsildar in accordance with the compromise based on affidavit Mark-PA between the parties of disputed Tamlik and the direction to the Chief Executive MEPCO Multan for separation of the localities of District Layyah from administrative control of District Muzaffargarh while the complaint alongwith all ancillary applications included in the file of the complaint is disposed off by way of return for filing separate cases about remaining complaints against each department, if so required to be filed."
8. I have observed that the present defendants are also bound by the said order being the subordinates of the DCO as such the present complaint is maintainable in present form and the claimant is entitled being the consumer of the services of the district management as tax payer to file the present complaint.
9. I am of the view that the SERVICES OF GOVERNMENT OFFICERS AND EMPLOYEES are deemed to be the FACILITIES as mentioned in the definition of the term SERVICES in S. 2 (k) of PCP Act 2005. The jurisdiction of the consumer court is clear enough from the provisions of S. 27/31/36 of PCP Act 2005. The DISTRICT ADMINISTRATION providing the PUBLIC SERVICES is obliged to fulfill all the responsibilities of a SERVICE PROVIDER under S. 13 to 17 of PCP Act 2005 subject to the restriction provided by S.14. The expectation of the public about their better services is therefore genuine and enforceable under the consumer law.
10. It is provided in the definition of the CONSUMER? in S. 2 (c) of the 'Act' that it means such a person or entity who "Hires any service for a consideration and includes the beneficiary of such services". The beneficiary of the services hired by another is also included in the definition of the consumer. The objection of the defendants about the definition of the term 'CONSUMER' is also not acceptable because the services of the defendants are presumed to be hired by the government for the benefit of the general public and every member of the public is presumed to be the beneficiary of the said services. The claimant is therefore entitled to be treated as the consumer being one of the beneficiaries of the services of the defendants hired by the government.
11. As far as the objection of the defendants is concerned to the effect that the claimant is not the consumer because he has not paid any consideration for the alleged work to the defendants, this court is of the view that said objection is misconceived because it is clear from S.2 (k) of PCP Act (Act II of 2005) that the free services without payment of any fee are not excluded from definition of the term SERVICES? because said services do not fall within prohibitory clauses (i) to (iii) of the said clause in which the examples of the services excluded from the definition are given as the 'contract of personal services', 'astrology', 'palmistry', 'court of law', 'arbitration' while the examples of the services to be included in the definition are given as 'medical', 'legal' or 'engineering services'.
12. It is understood that the examples given by law about the services to be included in the definition of the services under S.2 (k) are not exhaustive and most of the instances of both kinds of services can be included by practical experience in accordance with the nature of the cases but it can be safely found that the PUBLIC SERVICES" cannot be excluded from the definition of the SERVICES" by any stretch of imagination.
13. I am of the view that since the defendants are deemed to be the service providers and since the claimant is deemed to be the tax payer as such he is entitled to be treated as the consumer and the jurisdiction of this court to adjudicate the present complaint is not barred while the defendants are liable to arrange for the redress of the grievance of the claimant by proper arrangement at the earliest.
14. I am of the view that the staff of the institutions and departments and entities handling public dealings should be considerate and not adamant even after receipt of legal notices and even during the pendency of the complaint before the courts or by absenting themselves from the proceedings of the courts.
15. As far as the request for grant of damages is concerned, it is observed that it is settled law that the manufacturer or service provider is not liable for any damages except a return of the consideration or a part thereof and the costs, specifically where the consumer has not suffered any damages from the product or provision of service except lack of utility/ benefit.
16. It is pertinent to note that the grant of damages is curtailed even under Contract Act, 1872 in which it is provided in S.73 to 75 that the damages should be proportionate to the loss and not excessive by mentioning that such compensation for loss or damage caused by breach of contract is not to be given for any remote and indirect loss or damage sustained by reason of the breach. It is an embargo placed by the general law of contracts upon the powers of the courts about grant of damages.
17. It is also observed that further embargo on the quantum of damages to be awarded by the consumers courts has been placed by the law provided in S. 4, 10, 13 & 15 of PCP Act by declaring that the manufacturer or service provider shall be liable to a consumer for damages proximately caused by anticipated use of the product or provision of services that have caused damage but he shall not be liable for any damages except a return of the consideration or a part thereof and the costs in such cases where the consumer has not suffered any damages from the provision of service except lack of benefit or loss of utility.
18. As such, I find that this court cannot grant the compensation due to limited jurisdiction under consumer law.
19. It is therefore proper to issue the direction that the services of the Revenue Department should be improved and to be provided in proper manner so that no further complaint should arise.
20. As far as the request is concerned for appointment of the claimant as Tehsildar, I find that the claimant is presently at better footing than Tehsildar because he is shown to be the convenor of Jhoke Khan Wala Foundation according to his monogram printed on his applications and he is in the better capacity of NGO to watch about the services of all the departments of the government in said status.
21. It is clarified that when the functions of the Assistant Commissioners of the Tehsils were entrusted to the elected representatives of the public to Tehsil Nazim and of Deputy Commissioners of the districts to District Nazim, then the law had to be amended as such claimant is not entitled to be elected or posted as Tehsildar unless the law is amended. The request for appointment as Tehsildar is therefore not acceptable under the present law.
22. In accordance with above findings, the main complaint dated 06-01 2012 is partly accepted to the extent of the issuance of the direction for early disposal of all the previously pending applications of the present claimant in supervision of the Tehsildar and to include his name in the next phase of the Khad in accordance with his entitlement while ancillary complaint dated 23-01- 2012 is also accepted partly to the extent of the direction to the Tesildar to redress the grievance of the claimant at the earliest failing which the claimant would be entitled to get the regular inquiry initiated against the alleged misconduct of the Tehsildar through DCO in accordance with law.
23. Parties are left to bear their own costs.
24. This order would become final u/s 34 of PCP Act 2005, if the appeal is not preferred within period of 30 days under S.33 of PCP Act 2005 & Rule 18 of PCP Rules 2009 in accordance with the Rules of Procedure of Honourable High Court.
25. The file of this complaint is directed to be consigned to the record room of this court duly page marked with proper index and after due completion and made available for issuance of attested copies and kept under safe custody till the period fixed for destruction in accordance with the Rules & Orders of Honourable Lahore High Court.